1. ' DR. GHOUS MUHAMMAD, J.--- The appellant was tried and convicted by the Judge, Special Court No,III (S.T.A.), Karachi (Mr. Rafiq Ahmed Awan) for the offence under section 13-D of the Arms Ordinance, 1965 registered vide Crime No,284/1995 at Police Station Saddar (C.I.A.), Karachi. He was awarded four years' rigorous imprisonment and to pay fine of Rs,5,000 or in default to undergo R.I.
2. For six months more.
3. ' Briefly stated the facts as disclosed in the F.I.R. Are that on 7-11-1994 A.S.I., Iftikhar Ahmed along with subordinate staff was busy in the investigation of Crime No,132/1994 of Police Station Liaqatabad under section 17(3), Enforcement of Hadd Ordinance. At about 12-10 a.m. (mid-night) when the police party reached near Almida Chowk near Gora Qabristan they found motorbike bearing Registration No,KCB 7036 of red colour. They enquired about the registration book which the appellant could not produce. The police party also saw a bag of green color lying on the carrier of the motor-cycle. In the presence of two Mashirs, namely, Abdul Mannan and Arshad Iqbal this bag was searched and an unlicensed sten-gun along with one magazine loaded with 9 cartridges were secured. The appellant was arrested on the spot and then at the police station the F.I.R. Was lodged. After completion of other formalities the case was challaned in the trial Court.
4. ' The charge was framed on 11-12-1994. The appellant pleaded not guilty.
5. ' The prosecution examined two witnesses, namely, Abdul Mannan, who is a private Mashir and he produced the Mashirnama (Exh.4). P.W.2, A.S.I., Iftikhar Ahmed is the complainant as well as the Investigating Officer. He also produced the Mashirnama of recovery (Exh.6), F.I.R. (Exh.7) and report of the Ballistic Expert (Exh.8).
6. ' The appellant in his statement recorded under section 342, Cr.P.C. On 19-4-1995 denied the alleged recovery and pleaded innocence. According to him he was falsely implicated in this case by the Investigating Officer after he was picked up from in front of his house due to previous enmity.
7. ' We have heard Mr. Mansoob Ali Qureshi, learned counsel for the appellant and Mr. Ashiq Raza, learned counsel for the State and have perused the record.
8. ' Learned counsel for the appellant vehemently urged that the trial Court failed to appreciate the law and facts involved in this case. He specifically referred to the certified copy of the charge which was obtained by him on 16-4-1995 while the charge was framed on 11-12-1994. In this certified copy the date of incident is given as 17th day of December, 1994. In other words till 16-4-1995 the date of incident as mentioned in the charge was 17-11-1994 but the R&P shows that interpolation was made by changing the date from 17 to 7 with ink to indicate that the alleged incident took place on 7th day of 1994 and it 'is quite obvious that this was done after 16-4-1995. Throughout in cross- examination it was suggested to the prosecution witnesses whether any incident took place on 17- 11-1994 and they replied in negative. However, the prosecution closed its side on 19-4-1995 and thereafter when the statement of accused was recorded under section 342, Cr.P.C. It seems for the first time this date was changed from 17 to 7-11-1994 which is evident from question No,1 which reads as under:-- "(1) You have heard the prosecution evidence wherein it is alleged that on 7th day of November, 1994 at about 00-10 hours midnight near Aisha Bawany School, Gora Qabristan, Karachi you were found in possession of one sten-gun loaded with magazine containing 10 cartridges. What have you to say?"
9. ' The appellant replied in negative. Then on the same day the judgment was pronounced and the appellant was convicted. The learned Presiding Officer did not realize that instead of correcting the date according to law from the commencement of trial a blunder was committed by changing the date from 17 to 7-11-1994 after the prosecution side was closed. Throughout in their statements both the Witnesses have nowhere stated that the alleged incident took place on 7-11-1994 yet the charge was framed on the same pattern without application of judicial mind. We have also noticed that there are overwriting, and interpolation in the diary-sheets which indicate that trial proceedings were not concluded with due sanctity.
10. ' Now, coming to the evidence of the prosecution witnesses P.W.1, Abdul Mannan in his examination-in-chief deposed that the police in his presence recovered sten-gun from the hand of the present appellant and some money was also recovered but he also stated that he could not say whether "the accused present in Court is the same from whose possession the stem-gun along with cartridges were recovered". In cross-examination he stated that the Mashirnama (Exh.4) of recovery of arrest was not read over to him. He also could not say whether the Mashirnama was written by the Investigating Officer but his thumb-impression was taken by the Investigating Officer on a plain paper. The second witness is Investigating Officer, Iftikhar Ahmed. He deposed that on 7- 11-1994 during investigation of Crime No,132/1994 under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, Police Station Liaquatabad, Karachi (Central) he along with his subordinate staff, namely, A.S.I. Mushtaq and 3/4 Police Constables at about 12-10 a.m.
11. Apprehended the appellant along with his motor-cycle near Almida Chowk (Gora Qabristan) and recovered sten-gun with magazine containing 9 cartridges. Since he could not produce the license, therefore, he was arrested on the spot and the Investigating Officer recorded his 154, Cr.P.C.
12. Statement and he sent the same through H.C. Muhammad Saghir to Police Station Saddar, Karachi.
13. In the F.I.R. As well as in his deposition the Investigating Officer has consistently stated that only A.S.I. Mushtaq and 3/4 Constables were with him. Nowhere he has stated that Head Constables Muhammad Saghir was also with them as member of the police party or that he reached at the spot and, therefore, he was asked to -take the 154, Cr.P.C. Statement to the police station. In cross- examination he denied the suggestion that any incident took place on 7-11-1994 at about 12-10 alin.
14. The bag in which allegedly the stengun was wrapped was also not produced in Court. In cross- examination he denied having enmity with the appellant or that he was picked up by the police form Shahra-e-Faisal Colony and no gun was recovered from his possession. On a careful analysis of the entire evidence one comes to the irresistible conclusion that the whole prosecution story is doubtful but the trial,. Court miserably failed to appreciate the evidence properly. The concluding para. Of point No,1 in the impugned judgment reads as under:-- "I have gone through the whole record of the case and have given due consideration to the arguments advanced by learned defence counsel as well as S.P.P. P.W.1 Abdul Mannan is an independent private witness who has fully supported the prosecution story. The defence could not prove that he is a stock witness or police tout. He has not enmity with the accused whatsoever and therefore, he had no reason to falsely depose against the present accused."
15. ' The above conclusion is based on extraneous consideration and is contrary to the evidence led by the prosecution. As observed earlier in his examination-in-chief the private Mashir (P.W:1) has stated that in his presence one stem-gun was recovered from the hand of the present appellant but throughout his cross-examination he has denied, this fact. He also denied the preparation of Mashirnama on the spot. Such a witness could hardly be treated as trustworthy and his statement is unworthy of credit. It is amazing that the trial Court has treated him as an independent witness.
16. Regarding the statement of (P.W.2), Investigating Officer the trial Court has in the same concluding para. Observed as follows:-- "His (P.W.1) statement has been fully corroborated by the Investigating Officer/S.I. Iftikhar Ahmed who has investigated the case in accordance with law and procedure and left no lacunae. No enmity has been proved by accused with him and he had no reason to fabricate a false case against the present accused."
17. The learned State Counsel on the basis of evidence on record conceded very frankly that undoubtedly there are material contradictions an ''' inconsistencies in the statements of the two witnesses. After having carefully examined the statements of both the witnesses we are constrained to observe that it has been misstated by the trial Court that the statement of the Investigating Officer has fully corroborated the statement of the Mashir (P.W.1). It appears that with a pre-determined mind just to award conviction the trial Court did not bother to follow the principles and law applicable for proper appraisement of the evidence which has resulted in serious miscarriage of justice.
18. ' We do appreciate that terrorism in any form and manner should be eliminated and possession of illicit arms should be checked effectively in order to improve the law and order situation. However, all proceedings whether criminal, civil and fiscal have to be conducted in accordance with the law and procedure. There is no warrant to deviate from the requirements of law and procedure prescribed, under the garb of conditions of the State and the people. If the prescribed conditions of law do not keep abreast with the requirements of the State and its people the Legislature ought to adopt corrective measures. Till such time corrective measures are taken the Courts ought to apply the law as it stands. Any exceptions to law and procedure is only permissible if the law itself provides for such eventuality. This is but the essence of the due process of law and the ethos of the concept of the rule of law.
19. ' The upshot of the above discussion is that the conviction and sentence of the appellant is legally unsustainable. Accordingly, the impugned judgment is set aside. The appeal is allowed. The appellant should be released forthwith if not required in any other case.